Jul 14, 2015

Goebbels' diaries and Copyright - the reproduction of literary works

A biography of Joseph Goebbels written by Peter Longerich, a professor of modern German history at Royal Holloway College and released by the publisher Random House in 2010 has recently been embroiled in a copyright dispute.

By way of background the original diary was started in 1923 and kept a detailed account of his working under the Nazi regime until April 1945, a month before his suicide. The diaries were published after his death in 29 volumes between 1993 and 2008.  How the diaries were found is most interesting as the written originals had been copied onto microfilm at Goebbels' request in 1945 and then buried to avoid destruction during the war. They were discovered in 1992 by German historian Elke Fröhlich in Moscow.  The microfilm had been transported from their burial place in Potsdam to the Russian capital where they were discovered in the archival library following the collapse of communism.

The dispute centers around the extensive use of quotes from Goebbels' diaries which are are owned by the former Minister of Propaganda's estate (which by way of information which is thought to consist of the direct descendants of Goebbel's four siblings on the basis that Goebbels and his wife committed suicide and murdered their children when Germany fell).

On behalf of the descendants, an action was brought in Munich District Court against Random House Germany and its imprint Siedler. The action was brought as no royalties were paid to the estate for the use of the quotes from the diaries.

Commenting on the moral aspect of the case Rainer Dresen, General Counsel for Random House, told the Guardian Newspaper that an important principle was at stake. He said, "We are convinced that no money should go to a war criminal."

In a further statement to Newsweek he said that there should be a suspension of copyright laws on legal and moral grounds saying "We have more than a purely moral argument ..... the name of Goebbels appears on a list, written by the Allied Control Council [the authority which governed Germany in the immediate aftermath of the Second World War], of war criminals whose estate was banned from financial transactions." Dresen said he made a private and public offer for Random House pay the royalties, so long as the funds were donated to a Holocaust charity however this was refused

This case is made more interesting by way of the fact that the term of copyright for literary works in Germany is the life of author plus 70 years. In this case, the diaries will enter the public domain on 1 January 2016 which was a point noted by the court.

At a previous previous ruling made in September 2014, Munich District Court ruled that Random House must disclose the takings from the biography in order that the fees due to the estate could be calculated.  The publishing group lodged an appeal to the Higher Regional Court of Munich.

In a further twist, ownership of the copyright by the estate has been called into question as Random House believes it has evidence, in the form of an article from the 1936 diary, of Goebbels selling the rights to his diaries to Nazi state publishers. If this assertion is correct copyright would be owned by the Bavarian government.

In the end the Court sided with the estate and held that royalty payments would cease in any event at the end of 2015, 70 years after Goebbels' death.

It is yet to be determined how much the estate will be able to claim as according to Dresen Random House intends to appeal the case to the German Supreme Court.  The implications of a final ruling may lead to other media organisations and publishers who have accessed and used the diaries seeking refunds in the event that any appeal is successful.

in: Case Law, Copyright, News

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